Davey v Aylesbury Vale District Council & Anor

Extra-statutory planning guidance is a material consideration, but it does not prescribe the weight that a local planning authority must give it. The weight given is a matter of planning judgment, reviewable only on public law grounds such as irrationality. An authority may rationally rely on expert advice that further procedural analysis would not assist its decision. Where a travel plan is suggested by policy guidance, the authority must consider whether one is necessary, but may decide that it is not required in the circumstances. A delegated officer may exercise a general discretion over planning conditions, including whether to impose a condition controlling helicopter use. A later enforceable undertaking may also make a challenge academic and justify refusing relief.

The claimant sought judicial review of the Council’s grant of planning permission and listed building approval for the conversion of Mentmore Towers into a hotel with a three-storey extension. He challenged the Council’s approach to enabling development, its failure to require a green travel plan, and its failure to impose a helicopter condition. During the proceedings, the interested party gave a unilateral undertaking under section 106 of the Town and Country Planning Act 1990, including obligations concerning a travel plan and helicopter movements. The central issues were whether the Council’s decision-making was unlawful and, if so, whether relief should nevertheless be refused.

1. Enabling development. The EH Policy Statement was a material consideration under sections 54A and 70 of the Town and Country Planning Act 1990. It was extra-statutory guidance and did not form part of the development plan. The Council was entitled to decide what weight to give it, subject to public law review. The distinction between whether a matter is material and the weight accorded to it was applied from Tesco Stores Ltd v The Secretary of State for the Environment [1995] 2 All ER 636.
2. The Council was entitled to rely on Knight Frank’s advice that the proposed scale of development was commercially appropriate and that further detailed enabling-development analysis would not assist determination of the application. The officers’ reports fairly and accurately summarised that advice. The first ground therefore failed.
3. Travel plan. PPG 13 was a material consideration. The Council had to decide whether a travel plan was necessary in the circumstances, rather than treat the guidance as mandatory. The Highway Authority had considered the substance of the sustainability issue, and the officers were entitled to advise that there would be no material conflict with PPG 13. The second ground failed.
4. In any event, the section 106 undertaking required submission of a green travel plan containing at least the requirements in Schedule 2 and required compliance with the approved plan. Those obligations were enforceable. If the ground had succeeded, the undertaking would have justified refusing relief.
5. Helicopter condition. The Council’s resolution delegated a general discretion over the conditions to be imposed. The Head of Planning acted rationally and lawfully in deciding not to impose a helicopter condition. The undertaking separately prohibited helicopter landings and take-offs within the application site. The third ground failed and was in any event academic.
6. The application for judicial review was dismissed.